People for the Ethical Treatment of Animals, Inc. v. Stein
259 F. Supp. 3d 369 (2017)
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Rule of Law:
To establish Article III standing for a pre-enforcement challenge to a statute creating a civil cause of action, a plaintiff must demonstrate a 'certainly impending' injury or a 'substantial risk' of harm, which is not met when the potential for a lawsuit depends on a speculative chain of contingent events and decisions by independent third parties.
Facts:
- North Carolina enacted the Property Protection Act, which allows an employer to bring a civil lawsuit against an employee.
- The Act targets employees who gain access to nonpublic areas with a non-bona fide intent for employment and then capture documents or record images/sound, using that material to breach their duty of loyalty.
- Plaintiffs, including People for the Ethical Treatment of Animals (PETA) and Animal Legal Defense Fund (ALDF), are organizations that conduct undercover investigations to expose alleged illegal or unethical conduct.
- These investigations involve members obtaining employment at targeted facilities to secretly record activities in nonpublic areas.
- PETA previously conducted an undercover investigation at the University of North Carolina at Chapel Hill (UNC/Chapel Hill) from 2001 to 2003.
- PETA alleges it wishes to conduct another investigation at UNC/Chapel Hill but is now deterred by fear of a lawsuit under the Act.
- ALDF has also conducted investigations in North Carolina and alleges it is deterred from continuing this work due to the Act.
Procedural Posture:
- A coalition of eight organizations, including PETA, sued the Attorney General of North Carolina and the Chancellor of UNC/Chapel Hill in the U.S. District Court for the Middle District of North Carolina (a federal trial court).
- Plaintiffs filed an amended complaint alleging the North Carolina Property Protection Act violated the First and Fourteenth Amendments of the U.S. Constitution and several provisions of the North Carolina Constitution.
- Plaintiffs sought a judgment declaring the Act unconstitutional and an injunction preventing its enforcement.
- Defendants filed a motion to dismiss the complaint, arguing lack of standing, Eleventh Amendment immunity, and failure to state a claim upon which relief could be granted.
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Issue:
Do organizations that wish to conduct undercover investigations, but are deterred by a state statute creating a civil cause of action against such activities, have Article III standing to bring a pre-enforcement constitutional challenge to that statute?
Opinions:
Majority - Schroeder, J.
No. The organizations do not have Article III standing because their alleged injury is too speculative and not 'certainly impending.' To establish standing based on a threatened injury, the harm must be concrete and imminent. Unlike a pre-enforcement challenge to a criminal statute where a credible threat of prosecution may suffice, the threat here is of a private civil lawsuit. The potential for such a lawsuit depends on a long chain of contingencies: an investigator must be hired, must discover and record conduct covered by the Act, and the employer (an independent third party) must then decide to bring a suit under this specific statute. This series of speculative events, dependent on the choices of independent actors, fails to establish the 'injury-in-fact' required for the court to have jurisdiction.
Analysis:
This decision raises the bar for pre-enforcement challenges against civil statutes that may chill First Amendment activities. By distinguishing the 'credible threat of prosecution' standard used for criminal laws, the court makes it significantly harder for organizations to challenge 'ag-gag' or whistleblower-deterrent laws before an actual lawsuit is filed. This forces potential plaintiffs into a difficult choice: either cease their constitutionally-arguably protected activities or risk incurring significant liability to create a test case. The ruling emphasizes that the speculative nature of a private party's decision to sue does not create the 'certainly impending' injury required for federal court jurisdiction.
